Last June, the U.S. Department of Labor announced that it would again issue opinion letters to assist employers and employees in interpreting laws like the FMLA and Fair Labor Standards Act. It was a welcome change as far as the employer community was concerned.

Then we waited.

And waited.

Finally, the day came: April 12, 2018. We might as well have been the proverbial 6-year old kid on Christmas morning as we waited in anticipation.

The DOL’s coming-out party consisted of an answer to this burning question: Do employers have to pay employees when they take eight 15-minute FMLA breaks during a work shift?

You know, because every workplace in America is being ravaged by oodles of employee who need eight breaks a day, right?

If you asked Alanis Morissette to describe the DOL’s first opinion letter in nearly a decade, it’s like finding ten thousand spoons when all you need is a knife. At a time when we need guidance on so many difficult FMLA issues, we didn’t need another spoon.

Employers Don’t Have to Pay an Employee Who Takes a Ton of Breaks

Enough of the Alanis Morissette imagery already. What’s the DOL’s answer to the question above?

Employee rest breaks (up to 20 minutes) generally must be paid because the DOL considers these breaks to exist primarily for the benefit of the employer. In Opinion Letter FLSA 2018-19, however, the DOL addresses a situation in which an employee needs to take a 15-minute break every hour in an 8-hour workday due to a serious health condition (supported by medical certification).

In its opinion, the DOL noted that an employee is not entitled to take an unlimited number of breaks throughout the workday and then expect to be compensated for them. In a situation where an employee requires eight 15-minute breaks per day as a result of the employee’s serious health condition, the DOL determined that the breaks were primarily for the benefit of the employee. Therefore, they are not compensable.

However, the employer still is on the hook for some of these breaks. The DOL reminded employers that these employees must be compensated for the same number of breaks taken by co-workers. For instance, if an employer typically allows two 15-minute paid breaks per day, the employee taking FMLA breaks every hour should be paid for two breaks. The remaining six breaks, of course, would be unpaid.

For your employees who take eight potty breaks a day, there is your answer. A real yawner for employers everywhere.

About Jeff Nowak

Jeff Nowak is co-chair of the labor and employment practice at Franczek Radelet, where he represents employers in all aspects of employment law. His clients praise him as a trusted business partner who is acutely aware of their business goals and the impact employment decisions have on their operations. A staunch advocate and effective litigator for his clients, Jeff also isn’t afraid to be candid with clients where compliance issues or litigation must be resolved to meet business objectives. He is a nationally-recognized leader in the FMLA and ADA, and his passion for the FMLA shows through on this blog.